Varner v. Bryan
| Decision Date | 01 March 1994 |
| Docket Number | No. 9210SC1199,9210SC1199 |
| Citation | 113 N.C.App. 697,440 S.E.2d 295 |
| Court | North Carolina Court of Appeals |
| Parties | Jimmy M. VARNER, Plaintiff-Appellant, v. Joe J. BRYAN, V. Charles Bullock, and Greg C. Jones, Defendants-Appellees. |
Womble, Carlyle, Sandridge & Rice by G. Eugene Boyce and Susan S. McFarlane, Raleigh, for plaintiff-appellant.
Michael B. Brough & Associates by Michael B. Brough and Jan S. Simmons, Chapel Hill, for defendants-appellees.
The record on appeal contains six assignments of error, all of which are related to the entry of summary judgment dismissing plaintiff's claims. Initially, we note that plaintiff has not brought forward in his brief any reason or argument in support of his assignment of error relating to the dismissal of his claim for intentional infliction of emotional distress and has, therefore, abandoned the assignment of error. N.C.R.App.P., Rule 28(b)(5). Therefore, we will consider only those assignments of error relating to the entry of summary judgment dismissing plaintiff's claims for tortious interference with contract and defamation. For the reasons stated herein, we affirm the judgment of the trial court.
G.S. § 1A-1, Rule 56(c) provides that summary judgment will be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." The party moving for summary judgment has the burden of establishing a lack of any triable issue of fact. Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 329 S.E.2d 350 (1985); Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975). In Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989), the Supreme Court characterized this burden as follows:
The movant may meet this burden by proving that an essential element of the opposing party's claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense which would bar the claim. [Citations omitted.] By making a motion for summary judgment, a defendant may force a plaintiff to produce a forecast of evidence demonstrating that the plaintiff will be able to make out at least a prima facie case at trial.
See also, Bernick v. Jurden, 306 N.C. 435, 293 S.E.2d 405 (1982); Zimmerman v. Hogg & Allen, 286 N.C. 24, 209 S.E.2d 795 (1974). With these rules in mind, we review the record below to determine whether the trial court properly granted defendants' motion for summary judgment.
We first consider plaintiff's claim for tortious interference with contract. In order to establish a claim for tortious interference with contract, plaintiff was required to forecast evidence of the following elements:
First, that a valid contract existed between the plaintiff and a third person, conferring upon the plaintiff some contractual right against the third person. Second, that the outsider had knowledge of the plaintiff's contract with the third person. Third, that the outsider intentionally induced the third person not to perform his contract with the plaintiff. Fourth, that in so doing the outsider acted without justification. Fifth, that the outsider's act caused the plaintiff actual damages.
Childress v. Abeles, 240 N.C. 667, 674, 84 S.E.2d 176, 181-82 (1954) (citations omitted).
The trial court's order of summary judgment was based in part on its conclusion that defendants were not outsiders to the contract with the Town of Knightdale. The court reasoned that defendants, as members of the Town Council, hired plaintiff and therefore were not outsiders to the contract against whom an action for interference with contract could be brought. However, in this State, one who is not an outsider to the contract may be liable for interfering therewith if he acted maliciously. Smith v. Ford Motor Co., 289 N.C. 71, 221 S.E.2d 282 (1976); You v. Roe, 97 N.C.App. 1, 387 S.E.2d 188 (1990); Murphy v. McIntyre, 69 N.C.App. 323, 317 S.E.2d 397 (1984). It is not enough, however, to show that a defendant acted with actual malice; the plaintiff must forecast evidence that the defendant acted with legal malice. Id. A person acts with legal malice if he does a wrongful act or exceeds his legal right or authority in order to prevent the continuation of the contract between the parties. Murphy, at 328-29, 317 S.E.2d at 401. The plaintiff's evidence must show that the defendant acted without any legal justification for his action. Childress, 240 N.C. 667, 84 S.E.2d 176.
Indeed, actual malice and freedom from liability for this tort may coexist. If the outsider has a sufficient lawful reason for inducing the breach of contract, he is exempt from liability for so doing, no matter how malicious in actuality his conduct may be. A "malicious motive makes a bad act worse, but it cannot make that wrong which, in its own essence, is lawful."
Id. at 675, 84 S.E.2d at 182, quoting Bruton v. Smith, 225 N.C. 584, 36 S.E.2d 9 (1945).
We agree with defendants that plaintiff did not forecast evidence tending to show that defendants acted with legal malice when terminating plaintiff's employment. As plaintiff concedes, a town manager serves at the pleasure of the town council and it is within the scope of a town council member's duties, and therefore within defendants' authority, to discharge a town manager. Even if plaintiff was terminated by defendants for personal or political reasons, as his evidence tends to show, such termination was neither a wrongful act nor one in excess of defendants' authority and therefore not legally malicious. You, 97 N.C.App. 1, 387 S.E.2d 188. In the absence of any forecast of evidence demonstrating that defendants acted with legal malice, defendants' motion for summary judgment on plaintiff's claim for tortious interference with contract was properly granted.
We next consider the sufficiency of plaintiff's evidentiary forecast regarding his claim for defamation. "In actions for defamation, the nature or status of the parties involved is a significant factor in determining the applicable legal standards." Proffitt v. Greensboro News & Record, 91 N.C.App. 218, 221, 371 S.E.2d 292, 293 (1988). Where the plaintiff is a "public official" and the allegedly defamatory statement concerns his official conduct, he must prove that the statement was "made with 'actual malice'--that is, with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 726, 11 L.Ed.2d 686, 706 (1964). The rule requiring "public officials" to prove actual malice is based on First Amendment principles and reflects the Court's consideration of our national commitment to robust and wide-open debate of public issues. Id., at 270, 84 S.Ct. at 720, 11 L.Ed.2d at 701. Thus, we must first consider whether plaintiff was a "public official" at the time the allegedly defamatory statements were made.
During oral argument, plaintiff's counsel acknowledged that plaintiff was a "public official" while he was employed as Town Manager, but contended that plaintiff's "public official" status ceased when his employment as Town Manager was terminated. Defendants argued that for purposes of this defamation action, plaintiff's termination has little significance regarding his status as a "public official." We agree with defendants.
In Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966), the plaintiff, formerly a county supervisor, brought suit against the defendant, a local newspaper columnist, alleging that a certain article written by the defendant was libelous. The article at issue was published after the plaintiff's employment by the county had been terminated. The Court stated that there could be no serious contention that the plaintiff's termination had any decisional significance, reasoning that although the plaintiff was no longer employed as a public official, his performance in that capacity continued to be the subject of broad public interest and debate. Id., at 87, 86 S.Ct. at 676, 15 L.Ed.2d at 606.
Undoubtedly, a public official's job performance will often continue to be the subject of important public debate and discussion long after the termination of his employment in a public office. Rosenblatt's extension of "public official" status beyond the duration of an official's employment is consistent with the New York Times policy favoring robust and open debate of public issues. Thus, we hold that plaintiff was a "public official" for purposes of our review of the allegedly defamatory statements made after his termination as Town Manager.
When a defamation action brought by a "public official" is at the summary judgment stage, the appropriate question for the trial judge is whether the evidence presented is sufficient to allow a jury to find that actual malice had been shown with convincing clarity. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202, 217 (1986); Proffitt, supra. Plaintiff contends that he satisfied his burden of forecasting actual malice by offering clear and convincing evidence that defendants knew the statements were false, or acted with reckless disregard as to their truth or falsity. We disagree.
Plaintiff first argues that his evidentiary burden was satisfied by evidence that hostility existed between himself and defendants as a result of "previous run-ins" due to plaintiff's assertions that defendants Bullock and Bryan were in non-compliance with various town ordinances. In support of this contention, plaintiff directs us to the decision of this Court in You v. Roe, supra. In You, citing Ponder v. Cobb, 257 N.C. 281, 126 S.E.2d 67 (1962), we held...
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